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Kenyan Constitution

August 5th, 2010 by Mike N · 4 Comments · Politics

According to this article in the Washington Times, Kenyans are voting for a new constitution. I did a search for a copy of it and found one here.It’s a long document and it seems to be trying to address every possible contingency. While I haven’t read the whole thing, there are some things I like in it but far too many I don’t. I’m afraid the fingerprints of collectivism and a really bad epistemology are all over it leading to contradictions and and just plain wishful thinking.Our constitution holds that the individual is sovereign, But chapter one declares that:

“(1) All sovereign power belongs to the people of Kenya and shall be
exercised only in accordance with this Constitution.
(2) The people may exercise their sovereign power either directly or
through their democratically elected representatives.
(3) Sovereign power under this Constitution is delegated to the
following State organs, which shall perform their functions in
accordance with this Constitution”

Thus sovereignty is placed in a collective context. I do like the idea that power is delegated to the state and not surrendered.

As an example of a contradiction, chapter two article 4 sections 1 and 2 state

“4. (1) Kenya is a sovereign Republic.
(2) The Republic of Kenya shall be a multi-party democratic State
founded on the national values and principles of governance
referred to in Article 10.”

It’s either or: a democracy or a republic. Had they said elections would be held democratically, that would be different which they do in chapter one. And the national values and principles of governance are a mixed bag. Some of these are:

“(a) patriotism, national unity, sharing and devolution of
power, the rule of law, democracy and participation of
the people;
(b) human dignity, equity, social justice, inclusiveness,
equality, human rights, non-discrimination and
protection of the marginalised;
(c) good governance, integrity, transparency and
accountability; and
(d) sustainable development.”

Of course ‘social justice’ is collectivism all the way and ‘sustainable development’ is free reign to interfere in the market place.

Their Constitution does have a bill of rights but which is also a seriously mixed bag. But I was happy to see this:

“(3) The rights and fundamental freedoms in the Bill of Rights—
(a) belong to each individual and are not granted by the

A major league improvement in thinking suggesting–but only suggesting–the proper source of rights. While the concept individual rights is not mentioned in any thing I’ve read so far, notice the words ‘each individual’ above. Also the words ‘every person’ and ‘a person’ are used often in the document.

After explaining how rights are to be limited only by just cause, article 25 then lists rights that are not to be limited. These are:

“(a) freedom from torture and cruel, inhuman or degrading
treatment or punishment;
(b) freedom from slavery or servitude;
(c) the right to a fair trial; and
(d) the right to an order of habeas corpus.”

Good ideas all.

Under Article 26 which lists rights it declares “Every person has the right to life” it also says that life begins at conception!! While there are more contradictions and bad ideas, I want to touch on one more before closing pointing out that although there is much likable language about the protection of rights, it is all thrown out the window under Economic and Social Rights:

“43. (1) Every person has the right—
(a) to the highest attainable standard of health, which
includes the right to health care services, including
reproductive health care;
(b) to accessible and adequate housing, and to reasonable
standards of sanitation;
(c) to be free from hunger, and to have adequate food of
acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.
(2) A person shall not be denied emergency medical treatment.
(3) The State shall provide appropriate social security to persons
who are unable to support themselves and their dependants.”

It’s almost like they’re trying to take abstract ideals from capitalism, like ‘rights’-because they seem to work-and combine them with concrete ideals from socialism.

Our constitution has survived this long because the contradictions written into it were few. But this document has many and will not provide Kenyans with either prosperity or justice. But I wish them luck.

4 Comments so far ↓

  • C. August

    This actually sounds an awful lot like the UN’s Universal Declaration of Human Rights, which is equally as flawed. I discussed those flaws in a old blog post wherein I quoted some of its articles — ones that Article 43 above appears to have been modeled after.

  • Mike N

    C. August: I just reread your article. Good analysis of the package deal that is human rights.

  • david michel

    people are stupid

  • Mike N

    David: “people are stupid” Which people? If you mean people in general I disagree. Some people are stupid for sure but most suffer from ignorance; ignorance of a proper metaphysics (view of reality and their place in it), a proper epistemology (method of thinking), a proper ethical code (system of relationships with other people) and these all lead to an improper political system. By proper I mean conducive to man’s survival qua man, i.e. qua a rationally self-interested being.